|Claimant(s):||VICTORIA PAULSEN, Individually and as Limited Administrator of the Estate of MARTIN PAULSEN|
|Claimant short name:||PAULSEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||MARCUS & CINELLI, LLP
BY: DAVID P. MARCUS, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 29, 2010|
|See also (multicaptioned case)|
On March 17, 2010, the following papers were read on motion by Defendant for summary judgment dismissing the claim:
Notice of Motion, Affirmation, Affidavits and Exhibits Annexed
Opposing Affidavits and Exhibits Annexed
Reply Affirmation and Exhibits Annexed
Filed Papers: Claim; Answer
Upon the foregoing papers, this motion is granted.
This claim accrued on February 20, 2004 when the decedent, Martin Paulsen, was involved in a motor vehicle accident and suffered grievous personal injuries which led to his death six months later on August 27, 2004. Limited letters of administration were issued to Claimant Victoria Paulsen, decedent's wife, by the Surrogate's Court of the County of Niagara on December 22, 2004. Pursuant to my order in Claimant's Motion No. M-72195 for permission to file a late claim, the instant claim was filed on January 8, 2007, alleging the Defendant's negligence relating to the accident, resulting in personal injury and wrongful death, and asserting a derivative cause of action on behalf of Claimant. The note of issue and certificate of readiness was filed on September 30, 2009. Defendant thereupon brought the instant motion seeking summary judgment dismissing the claim.
The accident took place on February 20, 2004 at a few minutes after 6:00 p.m. at the intersection of State Route 354 and French Road in the Town of Bennington in Wyoming County. Decedent was traveling northbound on French Road towards its end at a "T" intersection with Route 354. Upon entering the intersection, his black 2003 Audi RS6 was struck on the driver's side by a 2003 Chevrolet Avalanche operated by Kimberly Spink, who was traveling eastbound on Route 354.(1) Both drivers were wearing seat belts and their respective air bags were deployed.
It is not disputed that there was a stop sign for northbound vehicles on French Road at its terminus, that decedent did not stop as he entered into Route 354, and that Ms. Spink was obeying all relevant speed and traffic signs when she struck the Audi. In the police report (Exhibit E) and at her deposition (Exhibit F), Ms. Spink described decedent as having slowed or hesitated on French Road, that he looked in the opposite direction (at three westbound vehicles) and never looked in her direction as he rolled through the intersection. She slowed down as she saw him hesitate, but then he pulled out in front of her and she had no time or place to go to avoid the accident. Route 354 was described as having only two lanes of traffic, one in each direction. She characterized decedent as having "gunned it to try to beat the" other vehicles heading west.
What is troubling to me, however, is that the police record inexplicably reflects no statements or information relative to any of the three westbound drivers. Further, the only eyewitness to the accident is Ms. Spink, who brought an action against Claimant as Administratrix (see Defendant's Exhibit F). According to Ms. Spink, the weather conditions were dry roads, nice weather, clear, sun shining (Exhibit F, p. 10, lines 12-15). Yet, in paragraph 11 of the August 23, 2006 affidavit of Lawrence M. Levine, he notes that the police report codes (Defendant's Exhibit E) indicate cloudy weather and wet roads, and suggests that it contradicts the photographs, presumably those contained in Defendant's Exhibit G. Adding an additional factual discrepancy, Mr. Levine asserts that the sun had set ten minutes prior to the accident (¶7 of the Levine reply affidavit sworn to on November 22, 2006).
The Defendant then surmises that decedent was actually aware of the presence of a stop sign, demonstrated by his slowing down, and was aware of the intersection, demonstrated by his observation of westbound traffic and gunning his engine to "beat" those vehicles to the intersection.
Claimant alleges that the State's negligence resulted in the roadways existing in a dangerous and deteriorated condition (1) due to the lack of signage on State Route 354, including, inter alia, lack of signage and traffic control devices indicating that the intersection was approaching; (2) in not providing proper signage and traffic control devices on French Road to warn drivers of an upcoming intersection at State Route 354 where a stop was required, and (3) in creating a condition causing limited sight distance and visibility for drivers along Route 354 and vehicles on French Road seeking to turn onto Route 354.
One factual issue relates to the size of the "stop" sign on French Road. Claimant's expert avers that it was 24 inches across (¶5 of the August 23, 2006 affidavit of Lawrence M. Levine), which forms part of the allegations that the signage was improper, and that the stop sign was too small, leading decedent to enter the intersection without stopping. That assertion is contradicted by Robert W. Bernard, an employee of the Department of Transportation (DOT) for over 31 years and the relevant Sign Crew Supervisor since 1986, who avers in his affidavit that the stop sign and double arrow signs in question were installed in July and August 2000; that the stop sign post was replaced on February 1, 2002; that in nighttime reflectivity studies conducted in October 2002 and August 2004 he found the nighttime visibility of the relevant signs to be good with no changes in the signs between those dates, and in paragraph 10 specifically identifies the stop sign as an R1-1C with dimensions of 30" by 30". David Goehring, a 25-year employee of DOT and the Regional Traffic Engineer for the region in question avers that the stop sign in question was installed on July 13, 2000 and measured 30 inches in diameter.(2) And note further that retired DOT Director of Operations Larry Sherman testified at his EBT that DOT does not use stop signs measuring less than 30 inches (Exhibit G to Claimant's opposing papers, p. 15, lines 6-18).
There are numerous questions of material fact where the witnesses and their credibility could be assessed by the trier of fact. A trial, for example, could review Ms. Spink's assertions that, while traveling 50 to 55 mph, with possibly cloudy and not sunny weather and where the sun had allegedly set some ten minutes prior to the accident,(3) she: (1) had seen the decedent hesitate and slow down; (2) had observed him look only in the opposite (easterly) direction; (3) had seen and counted three vehicles approaching in the opposite direction on a two-lane road; (4) had seen decedent "gun" his vehicle to beat those three vehicles into the intersection, etc. In addition to taking into account Ms. Spink's vested interest based upon her own lawsuit against Claimant, there is remarkably no indication what happened to those three vehicles, to wit, since there was no damage to the passenger's side of decedent's vehicle, could all three have passed through the intersection before decedent entered it? That seems improbable, based upon Ms. Spink's testimony. Could they have passed through the intersection avoiding the accident as it occurred, and, if so, would not one of them have stopped to render assistance? The police report contains no reference to these vehicles, calling it an unwitnessed accident. In short, based upon the above, numerous collateral, factual questions exist, but do not directly impact on Claimant's theory of liability.
While the 30-inch stop sign is discussed in the 1992 New York State Operations Study (Exhibit D to the Goehring affidavit in support of the motion), Claimant's assertion that it was "24 inches across" is supported solely by the statement of Mr. Levine (¶5 of his August 23, 2006 affidavit). The Defendant produced similarly unequivocal statements and documents setting the size at 30 inches. Mr. Levine's statement is obtuse in that it simply announces the size, and does not address the methodology he utilized to draw (or measure) his dimensional conclusion, with the date of his investigation similarly undeterminable. While Claimant posits that "ample evidence" exists that the sign was 24 inches at the time of the accident, I reject counsel's admittedly unscientific and probatively unreliable personal measurement of a license plate and comparison to the stop sign in a nighttime photograph (¶¶ 39 and 40 of counsel's affidavit in opposition and Exhibit G to Defendant's motion).
Other unresolved factual questions similarly remain, particularly pertaining to conditions causing a limited sight distance and visibility for drivers along Route 354 and those, like decedent, on French Road intending to turn. Claimant's expert raises questions in opining that a dip in the road on Route 354 eastbound, along with snow banks on the southwest quadrant of the intersection, the absence of snow fencing, etc., blocked sight lines for decedent as he approached the stop sign (see photographic Exhibits E and I to Claimant's opposing papers). Indeed, a trial might ascertain whether Ms. Spink's opportunity to have observed decedent looking to his left for eastbound vehicles was precluded by the dip in the road, and that hypothesizes similarly that decedent may well have looked to his left and seen nothing since the Spink's vehicle may have been obscured in the depression or dip in the road.
Defendant invokes the principle of qualified immunity articulated in Weiss v Fote (7 NY2d 579), relying upon the 1992 New York State Operations Study which discusses, inter alia, the visibility of the 30-inch stop sign in advance of the intersection as the reason that a stop ahead sign was not warranted. The size discrepancy between the 24-inch sign asserted without support by Mr. Levine and the 30-inch sign cited in the 1992 study creates a potentially unresolved question of fact, which Claimant argues undermines the qualified immunities founded upon that study.
That study was initiated after a December 24, 1991 memo from D.N. Lange, the Resident Engineer of Genesee/Orleans and Wyoming Counties, to L. R. Sherman, DOT's Regional Traffic Engineer, referencing three accidents in the previous month where drivers purportedly "ran" the stop sign in question and hit the barn located across Route 354 at the intersection with French Road (Exhibit D to the Goehring affidavit). The 1992 study notes that the State's "accident analysis did not indicate any reported accidents with vehicles northbound on French Road at the intersection with Route 354 between March 1988 and March 1991," a reference that seemingly ignores those occurring the month preceding the December 24, 1991 Lange memo. The instant motion, however, can be resolved without the necessity of determining whether the State is entitled to the qualified immunity of Weiss v Fote (7 NY2d 579, supra).
Even if a trial were to be conducted, and each and every unresolved question of fact was resolved to Claimant's benefit, it could not and would not alter the irrefutable fact that this accident was caused solely by the decedent's failure to stop at the stop sign. Whatever visibility issues existed for drivers on Route 354, they had no bearing upon decedent's failure to stop at the stop sign. Whether putative visibility issues existed for decedent to observe eastbound traffic on Route 354 as he approached the intersection of French Road, they do not ameliorate his failure to have stopped at the stop sign. In addition to the stop sign on French Road, there also was a double arrow sign across Route 354 directly facing motorists on French Road (see upper photo on Defendant's Exhibit G and Claimant's Exhibits A and L).
This is an unwitnessed accident, and the only factual testimony available is that of Ms. Spink, who has been deposed by Claimant's defense counsel in the Spink lawsuit (Defendant's Exhibit F). Her irrefutable testimony establishes that the decedent did not stop at the intersection. It is not argued, nor is it fathomable to the Court, that there is any proof to the contrary.
There is no possible testimony that would address whether the decedent simply did not see the stop sign, irrespective of its size, or the double arrow sign, or was simply distracted perhaps by his dog. Any such finding would be so highly speculative that it could not survive the most elemental scrutiny.
All of the undisputed evidence of this tragic accident leads to the unwavering conclusion that the sole proximate cause of this accident was the decedent's failure to stop at the stop sign and entering an intersection where he did not have the right-of-way. That being the case, the Defendant need not rely upon the putative immunities of the 1992 Operations Study (see Weiss v Fote, 7 NY2d 579, supra), as Claimant's arguments that the study is defective or incomplete do not affect the sole proximate cause.
Under all the circumstances extant, and based upon my thorough review of the motion papers, it would be disingenuous to deny Defendant's motion and conduct a trial. It would allow a pyrrhic victory, and would misleadingly prolong this claim, only to dismiss it after trial.
Defendant's motion for summary judgment is granted and the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 29, 2010
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims
1. The Wyoming County Sheriff's Office police report (Exhibit E) references Ms. Spink as stating that she was westbound on Route 354. That appears to be erroneous, either by Ms. Spink or by the reporting officer, as all other indicia, including damage to the entire left (driver's) side of the Paulsen vehicle, places her in an eastbound direction.
2. Defendant provides as Exhibit B to its reply affirmation a February 12, 2007 letter to Claimant indicating two post-accident replacements of the stop sign, on December 21, 2004 and September 26, 2006.
3. Somewhat contrary to her deposition testimony in her action against Claimant (Exhibit F to the motion).